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TMI Blog2013 (9) TMI 679X X X X Extracts X X X X X X X X Extracts X X X X ..... it, afresh - Decided in favour of assessee. - ITA Nos. 5401/Mum/2012 & 7230/Mum/2011 - - - Dated:- 16-11-2012 - Order These two appeals are by the assessee for the assessment year 2007-08. The appeal in I. T. A. No. 7230/Mum/2011 is in Form 36B against the orders of the Dispute Resolution Panel and the Assessing Officer passed under section 143(3) read with section 144C in pursuance of the directions of the Dispute Resolution Panel. Appeal in I. T. A. No. 5401/Mum/2012 is in Form 36 against the order of the Commissioner of Income-tax (Appeals) dismissing the appeal preferred by the assessee against the order under section 143(3) dated August 19, 2011 (read with section 144C) as not maintainable. Briefly stated, the assessee filed return of income on October 31, 2007 declaring an income at Rs. 3,27,225. The assessee formerly known as Lehman Brothers Services India P. Ltd is a company incorporated in India and is engaged in business of software development and information technology enabled services and has claimed deduction under section 10A. During the year the international transactions entered into by the assessee with its associate enterprises (AE) were more than Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 140C which section prescribed as who should sign the return of income, etc. Thereafter vide paragraph 2.2.1 the Dispute Resolution Panel notes as under : "2.2.1. By its reply received on June 27, 2011, the authorised representative of the assessee-company have filed photo copies of certain documents which are unauthenticated. As per these copies, it is seen that the document is stated to be a certified true copy of the resolution passed by the board of directors of Nomura Services India P. Ltd. at the meeting held on April 24, 2009 by which the board of directors authorised Shri Brijesh Ahuja among others to prepare, sign, furnish and file income and other tax return . . . etc. The document however, does not state the specific circumstances under which the board of directors is compelled to authorise Shri Brijesh Ahuja to sign the income-tax returns among other documents. In view of this, the assessee-company's Form 35A is not in compliance with the relevant provision of section 140(c) which is reproduced as under : Extract of section 140(c) : 'In the case of a company, by the managing director thereof, or where for any unavoidable reason such managing director is not able to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see is held to be invalid, 'non-est' and dismissed in limine." By concluding the above the Dispute Resolution Panel rejected the objections filed by the assessee as non-est and dismissed the same in limine. We are surprised to note that three Commissioners of Income-tax constituting the Dispute Resolution Panel does not follow the Rules under which the Dispute Resolution Panel is functioning. By a Notification No. 84 of 2009 (S. O 2958(E)/F.No. 142 /22/2009-TPL) dated November 20, 2009, in exercise of the powers conferred by sub-section (14) of section 144C, the Central Board of Direct Taxes had issued Rules to regulate the procedure of Dispute Resolution Panel. Rule 4 for filing objections is as under : "4(1) Procedure for filing objections.-The objections, if any, of the eligible assessee to the draft order may be filed in person or through his agent within the specified period in Form No. 35A. (2) The objections referred to in sub-rule (1) shall be in English and presented to the Secretariat of the panel. (3) The objections shall be filed in paper book form in quadruplicate duly accompanied by (a) four copies of the draft order duly authenticated by the eligible asse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en recourse to section 140 to state that Form 35A (which is a non statutory form) should also follow the provisions as prescribed as that of a return of income. With regard to the provisions of section 140, section 140 of the Incometax Act prescribes who should sign the return and the said provision is as under : "140. The return under section 115WD or section 139 shall be signed and verified (a) in the case of an individual, (i) by the individual himself ; (ii) where he is absent from India, by the individual himself or by some person duly authorised by him in this behalf ; (iii) where he is mentally incapacitated from attending to his affairs, by his guardian or any other person competent to act on his behalf ; and (iv) where, for any other reason, it is not possible for the individual to sign the return, by any person duly authorised by him in this behalf : Provided that in a case referred to in sub-clause (ii) or sub-clause (iv), the person signing the return holds a valid power of attorney from the individual to do so, which shall be attached to the return ; (b) in the case of a Hindu undivided family, by the karta, and, where the karta is absent from India o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, reliance of the Dispute Resolution Panel on the provisions of section 140 which does not apply to Form No.35A prescribed under the rules is itself wrong and in our view is only invoked by the Dispute Resolution Panel without realising its limitations and jurisdiction, for the sake of rejecting the application. Unlike Form No. 36B which has various notes prescribed along with Form, Form No. 35A does not have any notes. It only refers to rule 4(1) which enable the objections to be filed even through an agent. The order passed by the Dispute Resolution Panel, in our view is beyond the jurisdiction provided to that. Even under the Dispute Resolution Panel Rules or under the provisions of the Act, the mandate to the Dispute Resolution Panel is to consider the objections on merit and give directions to the Assessing Officer with reference to the draft assessment order. Even this basic duty has not been performed by the Dispute Resolution Panel. It simply rejected Form 35A filed by the assessee as invalid, non est and dismissed in limine. On this count also the action of the Dispute Resolution Panel cannot be upheld and therefore, we are of the firm opinion that the order pas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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